It all depends on the "reasonable expectation of privacy". If something is encrypted and does not involve the transmission of the protected data to a second party, then a warrant would most likely be required to seize it as evidence. Even then, things like banking records are most likely going to require a search warrant.

So, if someone were to tap a phone line without permission, what would happen? Certainly any intel obtained or evidence derived therefrom would be inadmissable as evidence, but what else would actually happen?

Felony prosecution, imprisonment. In my state, some years back a retired state trooper was elected sheriff. He decided that he wanted to target some local alleged drug dealer with illegal wiretaps. The illegal taps were discovered, the sheriff was prosecuted and went to prison as a result. In Nevada, some years back, a NDI Agent and a DEA agent were discovered by other DEA agents engaging in illegal wiretaps. They were prosecuted and convicted of violating the federal wiretap statutes.

Solari: Hi. This is Jenna Solari from the FLETC Legal Division. Iím here today with Mr. Keith Hodges, also from the Legal Division to talk to you about some more legal tools for your investigative tool box. Mr. Hodges, letís talk about covert entry search warrants as provided in the USA Patriot Act. Now Iím pretty sure Iíve also heard these referred to as sneak and peek warrants. Can you start us off with a little background about these?

Hodges: Sure. The USA Patriot Act amended or added a lot of provisions to the US Code. One of the amended provisions was 18 US Code ß3103a concerning procedural requirements when executing search warrants. Now you remember from your training that after you execute a search warrant we have to leave a return. The amendment permits officers, with a magistrateís approval, to delay providing a return on the results of a search. Covert entry warrants have been around for a long time and the value of the Patriot Act is that it now provides specific statutory authority to use them.

Solari: Well I think youíve already given me a little bit of a preview, but how specifically does a covert entry search warrant differ from a regular search warrant?

Hodges: Thatís a killer question. Covert entry warrants are exactly the same as a regular warrant, except that with a covert entry warrant, the officers request, and the magistrate can authorize, a delay in providing a return to the subject of the search and that return as weíve already said, advises the subject of the search that a search was conducted and if evidence is taken from the search, what evidence was taken. Now, the officers still have to convince a magistrate thereís probable cause to search and they must still execute and serve a return. But the main difference of a covert entry warrant and a traditional search warrant is that thereís a delay in providing a return to the target of the search.

Solari: Well it seems like that the provision then would be primarily useful in an investigation where the officers donít want to tip off the subject of the search.

Hodges: Jenna, thatís exactly its value. If officers immediately execute a return, the subject will know he is the target of an investigation. And when that happens, the defendant will have a chance to destroy evidence that was not discovered, and he may tip off his criminal partners, flee the jurisdiction, threaten witnesses or otherwise possibly jeopardize the investigation.

Solari: Well that makes sense then. Now why the nickname, why have some commentators called covert entry warrants sneak and peeks?

Hodges: Iíll tell you itís not necessarily an inaccurate description. A covert entry warrant comes in two types. In the first type, agents can enter the targetís home, look around, take pictures, go through files, hop on the computer to look at emails or data, and make copies of whatís seen. The scope of their looking around will be based on the facts in the affidavit and what the magistrate approves. In this type of covert entry warrant, the agents are not authorized to seize anything. So, a sneak and peek is not a bad way to characterize this type of covert entry warrant. In the other types of covert entry warrants, the officers are specifically allowed to seize evidence thatís listed in the warrant.

Solari: Well now how would the officers know which type of warrant they have? In other words, how do they know whether they can seize evidence?

Hodges: Well it depends on whether the officers asked the magistrate to seize evidence, and the justification provided to the magistrate that requested the cover entry warrant. Now a magistrate can authorize a delay in return notification if reasonable cause is shown that providing immediate notification of the search will have an adverse result. If thatís all thatís shown, in other words, all the officers have is reasonable cause; the officers can only get a sneak and peek. They canít seize evidence. If however itís shown that thereís a reasonable necessity for a seizure of evidence, then the magistrate can authorize not only the entry and a delay in the return, but also the seizure of evidence.

Solari: Alright, well letís back up one second. You just said that if the agents can show a potential adverse result from notification then they can get a sneak and peek warrant. Now what is an adverse result, and could you give me some examples?

Hodges: Sure. That term is defined in 18 US Code ß2705. An adverse result means that if the officers provide an immediate return after execution of the warrant that immediate return might endanger someoneís life or physical safety, or it might cause flight from prosecution by the bad guys notifying their confederates, it may result in the tampering or destruction of evidence, or result in the intimidation of potential witnesses, or otherwise seriously jeopardize an investigation or unduly delay a trial. This provision that provides us the authority to delay giving notification is a really valuable tool and if you think youíre going to go in and you need to execute a search warrant especially, a sneak and peek just to look around, and donít want to tip off the confederates this is the tool to use.

Solari: This sounds like a great tool. Now how long the return could be delayed?

Hodges: Well for as long as the judge decides, and the statute also allows for extensions. It all depends on what facts are provided to the magistrate and what the magistrate decides to do.

Solari: Alright, so again just sort of grounded in reasonableness I guess. Now because this provision is in the USA Patriot Act, thereís gotta be a catch, so is it fair to say that this search warrant, this sneak and peek, has to somehow be connected to a terrorism investigation?

Hodges: Well as you well know, many Patriot Act provisions are terrorism-related, but not this one. While certainly useful in terrorism investigations, covert entry warrants can be used whenever officers can articulate an adverse result and the judge approves the covert entry warrant. It doesnít have to be a terrorism investigation.

Solari: So just to be clear then, a magistrate could under the right circumstances approve a covert entry warrant in a fraud case that has nothing to do with terrorism?

Hodges: Yes, exactly. For example, if I have a probable cause that Joe is engaged in a fraud scheme with several other persons and that evidence of that scheme is located in his house, I might request a covert entry warrant to look around to determine the scope of the fraud, who are the actual or future fraud victims, where the proceeds of the fraud are being concealed, and very importantly, who the co-conspirators are. By using the covert entry warrant, I can see the evidence without tipping off criminal associates and causing them to flee or destroy evidence.

Solari: Thatís a really powerful tool. Now in some public reporting, weíve had people argue pro and con certain provisions of the Patriot Act. I think Iíve heard these warrants actually described by some of the people on the con side as nothing more than legalized burglary. Can that fairly be said to be an accurate description of sneak and peek warrants?

Hodges: I kind of like it, but I would tend to emphasize the word ďlegalized,Ē which would further mean there is no burglary; and I have read those claims and there are three things that opponents to covert entry warrants want to ignore. First, while the statutory provision wasnít codified until 2001, these warrants have been around and used by the courts for a long, long time. Secondly, I think the operative word in ďcovert search warrantĒ is warrant. Like any search warrant, it has to be approved by a magistrate and supported by probable cause. And as we discussed earlier, the only difference between a covert entry and garden variety search warrant is that an immediate return - that immediate notification after execution of the warrant - is not required and the notification can be delayed. And finally is that for a covert entry warrant to be useful, the search has to be conducted when no oneís at home. The fact is thereís never been a requirement that a person be at home when a search warrant is executed.

Solari: That makes sense to me. These covert entry warrants appear to be an extremely useful tool for law enforcement officers, it seems they come in especially handy at the beginning of an investigation by not jeopardizing what comes later - like you said by tipping off confederates.

Hodges: Well I agree. Now, of course, with a garden variety warrant which requires an immediate return, the investigation can be severely impaired because the suspects know that officers are investigating. Covert entry warrants prevent that from happening. In addition, in complex cases with many defendants and wholesale concealing of evidence at various locations, these warrants can be used to ensure that all the defendants are identified and all the evidence is found. And again I like to remind folks of a couple things. First, it does not have to be a terrorism-related investigation; it can be for general crimes. Secondly, there two different types of covert entry warrants; one is a straight sneak and peek when you get to go in and look around, the other type is that you are actually allowed to actual seize evidence. And lastly, itís the magistrate judge who is going to decide whether or not you get a sneak and peek. And so if you need a sneak and peek or a covert entry warrant, we need to include that in the affidavit and specifically tell the judge that thatís what you want, how long you want a delay for, and to articulate your reasons for that.

Solari: Well thank you Mr. Hodges for outlining for us the provisions and requirements of covert entry a/k/a sneak and peek warrants. I really appreciate that. Those of you out there who want to listen to some other of our podcast can find them at our website which is located at www.fletc.gov/legal.

By JULIA ANGWIN The Obama administration is preparing a stepped-up approach to policing Internet privacy that calls for new laws and the creation of a new position to oversee the effort, according to people familiar with the situation.

The strategy is expected to be unveiled in a report being issued by the U.S. Commerce Department in coming weeks, these people said. The report isn't yet final and could change, these people said.

In a related move, the White House has created a special task force that is expected to help transform the Commerce Department recommendations into policy, these people said. The White House task force, set up three weeks ago, is led by Cameron Kerry, the brother of Sen. John Kerry (D., Mass.) and Commerce Department general counsel, and Christopher Schroeder, assistant attorney general at the Department of Justice.

The initiatives would mark a turning point in Internet policy. Recent administrations typically steered away from Internet regulations out of concern for stifling innovation. But the increasingly central role of personal information in the Internet economy helped spark government action, according to people familiar with the situation.

The Wall Street Journal has been examining this online information-gathering industry in its "What They Know" investigative series.

Privacy issues are bubbling up on Capitol Hill. Rep. Joe Barton (R., Texas), co-chairman of the Congressional Privacy Caucus and ranking member of the House Energy and Commerce Committee, said he welcomed the administration's privacy initiative.

Alas, it appears the above piece only serves to distract from a failure on another front:

Physician, Heal Thyself

Posted by Jim Harper

The Wall Street Journal reports that the Commerce Department will soon come forth with a Ēstepped-up approach to policing Internet privacy that calls for new laws and the creation of a new position to oversee the effort.Ē

Meanwhile, with nearly 22 months in office, President Obama has still not named a single candidate to the Privacy and Civil Liberties Oversight Board that Congress established to review the governmentís actions in response to terrorism. Had he appointed a board, it would have issued three public reports by now, and we would be awaiting a fourth.

On another front, what, if anything stops the Feds from using this on us?=========COMBAT BY CAMERA

The changing face of aerial reconnaissanceAerial spying is 'now the centerpiece of our global war on terrorism.' And that has meant a growing and potentially huge business even as the Pentagon looks at cutting back on big-ticket items.

A Global Hawk robotic plane, hovering more than 11 miles above Afghanistan, can snap images of Taliban hide-outs so crystal clear that U.S. intelligence officials can make out the pickup trucks parked nearby ó and how long they've been there.

Halfway around the globe in a underground laboratory in El Segundo, Raytheon Co. engineers who helped develop the cameras and sensors for the pilotless spy plane are now working on even more powerful devices that are revolutionizing the way the military gathers intelligence.

The new sensors enable flying drones to "listen in" on cellphone conversations and pinpoint the location of the caller on the ground. Some can even "smell" the air and sniff out chemical plumes emanating from a potential underground nuclear laboratory.

--------------------------------------------------------------------------------Get a daily snapshot of market numbers and trends, delivered right to your mobile phone. Text BUSINESS to 52669. --------------------------------------------------------------------------------

Reconnaissance is "now the centerpiece of our global war on terrorism," said David L. Rockwell, an electronics analyst with aerospace research firm the Teal Group Corp. "The military wants to have an unblinking eye over the war zone."

And that has meant a growing and potentially huge business for the defense industry at a time when the Pentagon is looking at cutting back on big-ticket purchases such as fighter jets and Navy ships.

The drone electronics industry now generates about $3 billion in revenue, but that's expected to double to $6 billion in the next eight years, Teal Group estimates.

The industry's projected growth has fueled a surge in mergers and acquisitions of companies that develop and make the parts for the sensor systems, many of them in Southern California.

"There has been an explosion in the reconnaissance market," said Jon B. Kutler, founder of Admiralty Partners, a Century City private investment firm that buys and sells small defense firms."It's one of the few remaining growth areas."

Trident, which has about 70 employees, has seen its sales more than double to about $40 million over the last five years.

The demand for sensors is growing as the Pentagon steps up use of drones for intelligence gathering.

More than 7,000 drones ó ranging from the small, hand-launched Raven to the massive Global Hawk ó are currently deployed in Iraq and Afghanistan. Though some have been outfitted with laser-guided bombs or missiles ó grabbing most of the news headlines ó all are equipped with sensors for reconnaissance and surveillance work.

The most advanced cameras and sensors are on the Global Hawk, a long-endurance, high-altitude drone that can fly for 30 hours at a time at more than 60,000 feet, out of range of most antiaircraft missiles and undetectable to the human eye.

Peter W. Singer, author of "Wired for War," a book about robotic warfare, compares the technology to the popular "Where's Waldo" children's books, in which readers are challenged to find one person hidden in a mass of people.

The latest detectors not only can pick out Waldo from a crowd, but know when Waldo may have fired a rifle. Such sensors can detect the heat from the barrel of a gun and estimate when it was fired.

Many of the sensors have been developed by Raytheon engineers in El Segundo, where the company has had a long history of developing spy equipment, including those found on the famed U-2 spy plane.

Some of the more advanced cameras can cost more than $15 million and take 18 months to make. Raytheon develops the cameras in a humidity-controlled, dust-free laboratory to ensure that they are free of blemishes.

Each basketball-sized camera "must be perfect," said Oscar Fragoso, a Raytheon optical engineer. "If it isn't, we know we're putting lives at risk."

Raytheon has begun to face stiff competition as other aerospace contractors vie for its business.

Sparks, Nev.-based Sierra Nevada Corp., which is known for its work on developing parts for spy satellites, has developed a sensor system, named the Gorgon Stare, that widens the area that drones can monitor from 1 mile to nearly 3 miles.

Named for the creature in Greek mythology whose gaze turns victims to stone, the sensor system features 12 small cameras ó instead of one large one. It is to be affixed to Reaper drones before the end of the year.

With the multiple cameras, the operator can follow numerous vehicles instead of just one, said Brig. Gen. Robert P. Otto, the U.S. Air Force's director of intelligence, surveillance and reconnaissance. "By the end of the year, we're going to be fielding capabilities that are unlike anything we've used before."

But with an increase in the number of drone patrols and new sensor technology, the Air Force will be "drowning in data," Otto said. "That means we're going to need a lot more people looking at computer screens."

The Pentagon has said that drones last year took so much video footage that it would take someone 24 years to watch it all.

By this time next year, the Air Force expects to have almost 5,000 people trawling through the images for intelligence information. That's up from little more than 1,200 nine years ago.

"The reconnaissance work that's being done now takes seconds, where it used to take days," Otto said. "We're pushing the edge of technology."

The more data you gather, the more analysts you need to turn the data into intel to be disseminated. Were a drone to fly over you, and no one views it, would that matter? Again, it goes back to "reasonable expectation of privacy". In the public sphere, you don't have it.

"there is a reasonable expectation of privacy in the public sphere if there is no one in sight"

I think so. GM sees this I think from a different perspective. If you are a suspect in a recent armed robbery, other competing rights come into play. But under ordinary circumstances, in a wilderness area or park, others have the same right to be there and enjoy nature and privacy, but not a right to follow or snoop on you. Stalking laws are based on that exact unenumerated right of privacy, everywhere you go. Federal employees in a national forest likewise have a right to be there, to go about their business protecting trees, enforcing rules, doing their specific job, but don't otherwise have any right to mess with your privacy, follow you or observe you without official reason. There might be an expectation that forest officials could stop by your campsite briefly to see if camping and fire rules are complied with, for example, but not to pull up a chair and observe continuously. That would be an obvious violation of an unemumerated right as you correctly suggest, IMHO.

a) I would submit that there is a reasonable expectation of privacy in the public sphere if there is no one in sight, yet this technology would invade that privacy. **Just because you can't see someone, doesn't mean someone can't see you. A reasonable expectation of privacy can be said to exist in a place where someone exhibits an actual expectation of privacy that society recognizes as reasonable.**

Tim: Hi, this is Tim Miller and Jenna Solari. Weíre back again talking about a 4th Amendment search. We discussed previously that the Fourth Amendment is triggered by a government intrusion into a place where one has a reasonable expectation of privacy. Now Jenna, you told me who a government agent was, now letís talk about reasonable expectation of privacy. Again, a government agent going into a place were one has a reasonable expectation of privacy triggers the 4th Amendment, correct?

Jenna: Yes, thatís right.

Tim: OK now, whatís a reasonable expectation of privacy?

Jenna: Well, a reasonable expectation of privacy, or ďREP,Ē can be said to exist in a place where someone exhibits an actual expectation of privacy that society recognizes as reasonable.

Tim: Sounds like a two part test.

Jenna: It is actually. Thereís a subjective component, and thatís that actual expectation of privacy. So that would mean that someone actually believes that an item or an area has been concealed from public view. So, for instance, Iím in my hotel room and I want to have a private conversation with someone so I try to keep my voice low enough that I believe no one else can hear what I am saying. But then there is that second part of the two part test you mentioned, the objective test. Society has to agree that what I am doing to conceal something is reasonable, that I have taken appropriate steps to conceal something from public view. For instance, I am in that hotel room and I actually think that I am keeping my voice low enough so no one else can hear me, so I have that subjective part satisfied. But objectively, letís say my voice is actually loud enough that someone can hear me out in the hallway where they have every right to be. So if a federal agent just happens to be standing out in the hallway and unbeknownst to me my voice is loud enough that he can hear what I am saying, then I donít have that objective expectation of privacy. Society is not willing to agree that what I am doing is a reasonable way to keep myself from being overheard. So I wouldnít have any REP in my conversation.

Tim: OK, well how about giving me some examples of how a person might exhibit an expectation of privacy that society is willing to accept as being reasonable.

Jenna: OK, well, I think the simplest example would be if you have an item you want conceal from public view, put it in an opaque container. Put it inside a suitcase or a backpack, or if you want to keep it in your car, put it in the glove box or the trunk where people canít see it when they just happen to be walking by. If weíre talking about your body, we know that people typically have the highest expectation of privacy in their bodies and in their houses. So, letís say you have a tattoo on your left bicep you donít want people to see. The best way to have a reasonable expectation of privacy in that is to put on a shirt that covers it up. Donít walk around, you know, with a tank top on so the whole world can see your tattoo. Things inside the body have an incredibly high expectation of privacy thatís recognized by the courts. So, if you think of your skin as a giant container, everything within your body, like blood, saliva, urine -- you have a reasonable expectation of privacy in those things. Putting something inside your house, for the most part, gives you a reasonable expectation of privacy in that item, that is unless again, you put it somewhere where the whole world can see it. Letís say you put it in your living room picture window where someone can see it from the street Ė then, again, society would not agree that youíve taken reasonable steps to keep that secure from public view. But if you put it away somewhere where people couldnít see it, then youíd have REP in that item. So things like that.

Tim: Sounds to me like if you put it inside of a container or you cover it up, societyís probably going to give you an expectation of privacy.

Jenna: Yes, thatís right.

Tim: Now, you know, a lot of kids nowadays have transparent book containers, book bags, and I think I know the answer to this, but can a child reasonably expect privacy in a transparent book bag?

Jenna: No, and thatís really the whole reason behind it. Theyíre required to carry transparent book bags, I assume, so that everybody can see what they have in there. So, they really wouldnít have any reasonable expectation of privacy in those things that are inside that book bag, because again, they are out there for the whole world to see.

Tim: OK, well, you know, a trash can is a container. Can I reasonably expect privacy inside my trash can?

Jenna: That depends on where your trash can is, actually. If itís inside your house, again, things that are inside your house usually get the highest protection from the courts so, yeah, youíd have REP in your trash, inside your trash can while it is still in your house. Now it gets a little different as the trash moves further from your house. If itís still close to the house -- letís say itís just inside your garage or maybe just outside your front door -- thatís on that area that we call curtilage, and we will talk about that a little later, you probably still have REP in that trash in your trash can. Itís really when you put it out wherever collection takes place -- when you put it out on the street corner or the street in front of your house, what you have essentially done is told the whole world ďI donít want any of this any more.Ē Youíve abandoned that property and said ďI want the trash man to take it away.Ē So, at that point you would not have any REP in that trash, even if you thought you did. Even if you actually thought that was private until the trash man took it, at that point society says, ďno, youíve thrown that away so you donít have REP in that anymore.Ē

Tim: So, first, it has to be an actual expectation of privacy, and secondly, society has to recognize it as being reasonable.

Jenna: Yes, sir, thatís right.

Tim: OK, who can reasonably expect this privacy? For example, you know, Iíve got a house, itís my house. I live there; I assume I can expect privacy inside my house.

Jenna: Absolutely.

Tim: Anybody else?

Jenna: Sure, if you had overnight guests in your house, letís say friends of yours or family members came to visit and you let them stay overnight. Then youíve essentially given them the run of at least part of your house. They have brought their private belongings in there and sort of established themselves in a room; theyíd have REP inside your house. Social guests who stay for an extended period of time or who come by your house pretty frequently -- maybe they keep things in your house or inside your garage -- they may have REP in your house to some extent. I can tell you that people who wouldnít have REP in there would be your commercial visitors, somebody who comes by just to sell you something or someone you invite just inside your front door maybe for five minutes at a time wouldnít have any REP in your house.

Tim: So my mom and dad coming to visit for the weekend, they probably have an REP inside my house?

Jenna: Yes.

Tim: However, the paperboy coming to collect the bill would not.

Jenna: Right, the paperboy wouldnít. Or, letís say the pizza guy, who just steps inside for a second while you go get some cash to pay him for the pizza, he wouldnít have any REP inside your house. Heís just that commercial visitor who stopped by for a few minutes.

Tim: How about people who rent hotel rooms? I guess the person who rents the room would have an REP inside that hotel room, would he not?

Jenna: Sure, because itís really -- our 4th Amendment protection isnít limited to just houses as physical structures. Really we are talking about dwellings, where people live, as least for some period of time. So, that would include a hotel room. And of course if you rented the room, you would have REP in the room. Someone else could, as well. Letís say you and someone else go on a trip and so that person is sharing a room with you. That person has REP in there even if they werenít the ones actually paying for it. They have a room key, which means they have the right to exclude people. Theyíre keeping things inside the room, so they would have REP in the room as well.

Tim: OK, Iíve got a car. I own that car; itís my car -- I assume I have reasonable expectation of privacy in it.

Jenna: Yes, you would.

Tim: How about the passengers?

Jenna: Mere -- we call ďmere passengersĒ is what I think youíre referring to -- usually have no REP in the car itself. And when I say ďmere passengerĒ I mean, Iíve never borrowed your car, I donít drive your car around, but at the end of work today I say, ďHey, Mr. Miller, can I grab a ride up to the front gate with you?Ē ďSure no problem,Ē you give me a ride up to the front gate. Iím just a mere passenger; Iím just along for a ride, so I donít have any REP in your car or in the glove box or in the trunk. But I would retain REP in, say, I carry a briefcase and a purse from home to work every day. So when I bring those things into your car, I would still have an expectation of privacy in my belongings, I just would not have any REP in your car. Now, of course, it might be a little bit different if you shared that car with someone else -- a friend, a spouse or something like that. Now that person might have REP in the car if they are authorized to drive it around or they use it a good bit. But a mere passenger wouldnít.

Tim: OK, why make a big deal out of all this, I mean, who has the REP? For example, suppose, I donít know, Dillinger and I rob a bank. Dillinger owns the car, he drives the getaway car and we throw the guns and the money inside the trunk of Dillingerís car. The cops then search the car and find that evidence. Can I get that evidence suppressed if the search is unreasonable?

Jenna: No, actually, and as I understand it itís Dillingerís car, right?

Tim: Right, yes.

Jenna: And you are essentially what we call a mere passenger, right? Youíre basically just hitching a ride away from the bank robbery?

Tim: Check, I am just a mere passenger.

Jenna: Ok, so then, no, it would be the same situation as when you give me a ride up to the front gate -- I canít have any REP in your glove box or in your trunk, so when the police search the car and they find the evidence in that trunk, Dillinger could complain about that search because that is his reasonable expectation of privacy. He could complain about whether it was reasonable or not. You couldnít, though, because you donít have any REP in that area, and we call that ďno standing to object.Ē The only person who could object to the search is the person whose REP was intruded upon.

Tim: So, if I had no standing to object, I couldnít object to the search even if it was unreasonable.

b) This technology can also spy on us when we are on private property.**Two related doctrines apply, Plain View and Open Fields.**

Miller: Jenna, letís get this straight. Thereís no REP in what an officer can see, hear or smell from a place he or she rightfully occupies; correct?

Solari: Thatís right.

Miller: And thatís Mr. Hunsuckerís analogy ďright to be, right to see.Ē So, if Iím a cop, standing on a public sidewalk, looking into the picture window of 123 Main Street and see a plant that I know is marijuana, Iíve not triggered the 4th Amendment. Isnít that correct?

Solari: Thatís right.

Miller: Why is the marijuana plant not considered to be in plain view?

Solari: Well, because youíve only established two out of the three requirements for plain view. You have to observe the marijuana from a place you have a right to be. You satisfied this requirement in your example. You made the observation from a public sidewalk. Second, the incriminating nature of the evidence (the marijuana plant you can see through that picture window at 123 Main Street) has to be readily apparent. You satisfied that requirement too. Through your training and experience as a police officer you know what marijuana looks like.

Miller: So, whatís missing?

Solari: You have no lawful right of access. In your example, you havenít explained that you have a warrant or any exception to the warrant requirement to actually enter or access 123 Main Street.

Miller: So, the plain view exception to the warrant requirement has three requirements. The officer must see the item from a place he or she rightfully occupies; itís incriminating or evidentiary nature must be readily apparent to the officer; and, thirdly the officer must be able to lawfully access the evidence.

Solari: Thatís right.

Miller: Is that right?

Solari: Thatís right.

Miller: Now, in my example, I was lawfully present on the sidewalk when I observed the marijuana. How can I lawfully get inside 123 Main Street and make more observations?

Solari: Use what youíve already seen and get an arrest warrant for the resident of 123 Main Street for possession of marijuana. Use what youíve already seen through the picture window to go get a search warrant for that location. If you donít have an arrest warrant or a search warrant, maybe thereís an exception to the warrant requirement that might let you inside. Maybe if you knock on the door you can get consent. If somebody runs inside whom youíre trying to apprehend maybe you can use hot pursuit. If the person inside 123 Main Street saw you looking through the picture window at his marijuana plant, grabbed it and made a dash for the garbage disposal, maybe you could use your probable cause coupled with destruction of evidence and use that exception to the warrant requirement.

Miller: The second requirement was that the evidentiary nature of the item must be readily apparent. That sounds almost like probable cause to me, correct?

Solari: Right

Miller: And based on training and experience, I think most officers can probably readily identify a marijuana plant.

Solari: Sure. I would think so. Readily apparent like you said means that the officer has probable cause to believe that whatever he or she is looking at is evidence of a crime - you can tell simply by looking at it. The officer has facts and circumstances made known to him, and those facts coupled with the officerís observations, make the evidentiary nature of the object readily apparent. For example, letís say officers are executing a search warrant inside 123 Main Street for a stolen television set. They know the residentís a convicted felon and while their looking for the TV in places where they have a right to look, they see a handgun laying right there on the coffee table. Now obviously as a general matter, officers can secure firearms in a safe place during a search; however, in this case, thereís also probable cause to seize that firearm as evidence of a crime because the officers at the scene knows that a convicted felon in possession of a firearm is in violation of 18 USC ß922 and of course that firearm does appear to be within the possession of a convicted felon.

Miller: Now finally, this third requirement is that the officer must have a lawful right of access.

Solari: Right and this is tricky. Thereís a difference between lawfully present when the officer makes her observation and lawful access. Lawfully present refers to the officerís position when she makes the observation. Lawful access refers to where she must be to actually put a hand on the item and retrieve it. So in your example, you were lawfully present on a sidewalk when you observed that marijuana through the picture window of 123 Main Street; however, you couldnít actually lawfully put your hand out and touch that plant and seize it. You had no right of access.

Miller: Letís assume Iíve got authority to be inside 123 Main Street where we saw that marijuana plant. Does that automatically allow me to go to the picture window and grab it?

Solari: Not necessarily. Iíve got to know what your authority is to actually access the room where you saw the marijuana growing. If youíve got a search warrant to search 123 Main Street, then Iíll bet youíve got authority to go search anywhere in that house where marijuana could be, so youíre probably going to get the plant then; however, if you knocked on the door and the owner let you in, but he refused to let you go any further than the foyer you still have no right of access to that plant you saw growing in the living room. ___________________________________________________________________________________________________

Open Field Doctrine Law & Legal Definition

The open field doctrine is a term used in criminal law to stand for the concept that anything plainly visible to the eye, even if itís on private property, is subject to a search since itís not hidden. Under this doctrine, consent to inspect the location is not required in order for a law enforcement officer to observe and report on things in plain view and include observations made. An open field is not an area protected under the Fourth Amendment, and there is no expectation of a right of privacy for an open field.

Is there no articulable principal of privacy here? Is there no 9th Amendment right?

**The 9th (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.) would seem to me as not applicable, given that the above caselaw/doctrine comes from the previously enumerated 4th amendment.**

Last point first: My proposition is that amongst the unenumerated rates of the 9th are the right to privacy and the right of self-defense.

Private Open Fields: Hypothetical: I have private property which extends further than the human eye can see. I am standing on the property where no one not on the property can see me. Question presented: Do I have privacy, or can the Feds, who presumably have a right to be in outer space, spy on me from outer space? Or, can they spy on me from a drone?

"private property which extends further than the human eye can see...Do I have [a right of] privacy?"

We will see what GM and others say. I say yes. Of course you have that right, up and until it conflicts with some other more compelling right of someone else. Let's say that law enforcement has a reason to believe armed bank robbers may be hiding out there or that forest fire officials have reason to believe a fire may may spread from there. People also have the right to have bank robberies pursued and forest fires prevented. That does not eliminate your right, it just may in rare cases supersede it.

I recall county officials used to write to my uncle regarding a little used family lake cabin that we needed to update an old septic system to newer standards. My uncle, a 9-term county attorney of a nearby county, would answer them with two questions. He wanted to know why he hadn't seen any report showing that the property was polluting in any way, and secondly he wanted them to refresh his memory with a copy of a letter signed by him giving them the permission they need to go on the property to conduct such a study, because he certainly didn't recall granting that permission. It never went any further than that except that after he passed away the septic system suddenly needed upgrading. If they had pressed on with legal action, I doubt he could have stopped them, but I think the question goes to Crafty's point, what right do they have to enter (observe, run tests) and what right does the property owner have to prevent them?

Last point first: My proposition is that amongst the unenumerated rates of the 9th are the right to privacy and the right of self-defense.

Private Open Fields: Hypothetical: I have private property which extends further than the human eye can see. I am standing on the property where no one not on the property can see me. Question presented: Do I have privacy, or can the Feds, who presumably have a right to be in outer space, spy on me from outer space? Or, can they spy on me from a drone?

Do you control the air space over your property? Could a private aircraft fly over and see you? Much like those celebrity weddings and the paparazzi flying overhead to try to get photos, or a news chopper trying for mystery missile footage, we have numerous aircraft photographing footage everywhere but restricted airspace. You've got both government and privately owned satellites with very detailed photographic equipment overhead constantly. The courts have upheld that using aircraft to spot marijuana grows on private property that couldn't be approached on foot was lawful, again open fields/plain view doctrines.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

**So, after decades of 4th amendment caselaw related to search and seizure, we're going to reach into the 9th amendment bag of tricks and create new privacy rights when the fourth has already clearly defined them? What would that look like? Do we reverse every conviction now? Explain how the missing blonde case would be different with your concept of privacy. The rapist didn't sign a release to be recorded by the hotel security cameras. Was his right of privacy violated?**

''Open Fields.'' --In Hester v. United States, 96 the Court held that the Fourth Amendment did not protect ''open fields'' and that, therefore, police searches in such areas as pastures, wooded areas, open water, and vacant lots need not comply with the requirements of warrants and probable cause. The Court's announcement in Katz v. United States 97 that the Amendment protects ''people not places'' cast some doubt on the vitality of the open fields principle, but all such doubts were cast away in Oliver v. United States. 98 Invoking Hester's reliance on the literal wording of the Fourth Amendment (open fields are not ''effects'') and distinguishing Katz, the Court ruled that the open fields exception applies to fields that are fenced and posted. ''[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.'' 99 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside. 100 Even within the curtilage and notwithstanding that the owner has gone to the extreme of erecting a 10- foot high fence in order to screen the area from ground-level view, there is no reasonable expectation of privacy from naked-eye inspection from fixed-wing aircraft flying in navigable airspace. 101 Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy. 102 And aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling. 103

''Plain View.'' --Somewhat similar in rationale is the rule that objects falling in the ''plain view'' of an officer who has a right to be in the position to have that view are subject to seizure without a warrant 104 or that if the officer needs a warrant or probable cause to search and seize his lawful observation will provide grounds therefor. 105 The plain view doctrine is limited, however, by the probable cause requirement: officers must have probable cause to believe that items in plain view are contraband before they may search or seize them. 106

The Court has analogized from the plain view doctrine to hold that once officers have lawfully observed contraband, ''the owner's privacy interest in that item is lost,'' and officers may reseal a container, trace its path through a controlled delivery, and seize and reopen the container without a warrant. 107

"So, after decades of 4th amendment caselaw related to search and seizure, we're going to reach into the 9th amendment bag of tricks and create new privacy rights when the fourth has already clearly defined them?"

I think your assertion that self defense would be covered under the 9th is very viable, given it's historic recognition in common law. I think other commonly recognized rights within society and the legal system that weren't specifically enumerated in the bill of rights would be covered by the 9th. It's not something to do lightly, as once the pandora's box were opened, then every activist judge would reach into the 9th for gay marriage, gov't healthcare, guranteed income and every other leftist cause du jour.

"I think other commonly recognized rights within society and the legal system that weren't specifically enumerated in the bill of rights would be covered by the 9th"

Privacy meets this standard, yes?

"It's not something to do lightly,"

AMEN!

"as once the pandora's box were opened, then every activist judge would reach into the 9th for gay marriage, gov't healthcare, guranteed income and every other leftist cause du jour."

Well, the activist judges are already doing that for gay marriage with the Equal Protection Clause. As for healthcare, guaranteed income, etc we already have FDR and BO (see his Chicago Public Radio interview in 200o or so) admitting that the Constitudtuion's rights are negative not, positive.

The right of the people to be secure in their persons, houses, papers, and effects (against unreasonable search/seizure)...

No. That did not protect anyone in Kelo (wrongly decided) and there was more privacy discovered in Griswold, Roe, and Lawrence decisions for examples than contained in the 4th. Can't speak for Crafty by I am saying a much greater right of privacy than the standard for which we require a search warrant. I don't know the words but an assumption of privacy, to be left alone in the pursuit of happiness, until another compelling interest becomes greater.

The right of the people to be secure in their persons, houses, papers, and effects (against unreasonable search/seizure)...

No. That did not protect anyone in Kelo (wrongly decided) **Kelo wasn't a 4th adm. case. It was 5th Adm. (Takings clause, as in "nor shall private property be taken for public use, without just compensation."I agree that in Kelo, using gov't power seizing private property on behalf of another private entity cannot be defined as for public use by any reasonable definition.**

and there was more privacy discovered in Griswold, Roe, and Lawrence decisions for examples than contained in the 4th.**Those were directly related to consensual sexual behavior amongst adults, which I would agree tend to fall under a right to privacy recognized by society (Which is part of a two part test related to the 4th regarding a reasonable expectation of privacy), with an exception in Roe, where a fetus also has rights to be considered.**

Can't speak for Crafty by I am saying a much greater right of privacy than the standard for which we require a search warrant. I don't know the words but an assumption of privacy, to be left alone in the pursuit of happiness, until another compelling interest becomes greater.

U.S. Secretary of Homeland Security Michael Chertoff (Photo by Alex Wong/Getty Images)The companies that make the airport nudie-scanners have high-priced lobbying teams that include former congressmen, top Capitol Hill staff, and former TSA brass, as I reported in my column yesterday.

But because I focussed on registered lobbyists, I left out the highest-profile revolving-door character in the pay of the nudie-scanner industry: George W. Bushís Secretary of Homeland Security Michael Chertoff. After the undie-bomber attempt on Christmas 2009, Chertoff went on a media tour promoting the use of these scanners, without disclosing that he was getting paid by Rapiscan, one of the two companies currently contracted by TSA to take a nude picture of you at the airport.

Hereís Chertoff in the NY Times just days after Christmas last year:

Screening technologies with names like millimeter-wave and backscatter X-ray can show the contours of the body and reveal foreign objects. Such machines, properly used, are a leap ahead of the metal detectors used in most airports, and supporters say they are necessary to keep up with the plans of potential terrorists. ďIf theyíd been deployed, this would pick up this kind of device,Ē Michael Chertoff, the former homeland security secretary, said in an interviewÖ

Chertoff was quickly reamed for not disclosing how he had monetized his public service.

The whole situation is depressing for two reasons:

1) Itís tawdry how much our ďpublic servantsĒ use their government jobs as meal tickets.2) Itís sad how much companies set up their businesses to depend on government, and thus lobbyists.

Influence magazine is a trade publication of K Street, and one of Rapiscanís hired guns, McKenna Aldridge, is touting this article on its website:

Rapiscanís Presence on Capitol Hill Pays Off

ÖRapiscan Systems, an OSI Systems Inc. subsidiary, has already taken note. The Hawthorne, Calif.-based company puts around 15 percent of its revenues back into the company to develop new technology.

But Rapiscan knows it needs to play ball in Washington to increase its profits. Like all companies that deal in homeland security, Rapiscan faces myriad legislative issues involving privacy, liability, customs, and the implementation of the 9/11 Commission recommendations. To compete with Boeing, Northrop Grumman, and L-3 Communications Corp., among other companies, two years ago Rapiscan opened a Washington office and hired more outside lobbyists and agency-specific federal marketing and sales staff.

The results have been apparent. Last year the company did $17 million t $20 million in contracts. Over the past six months, the company has had $40 million in sales to the U.S. government, compared with $8 million in 2004.

Two parting notes:

1) ĒPlay ballĒ is an interesting choice of words, considering that the alternative to walking through the Rapiscan is a friendly pat-down. 2) Youíd think parent company OSI systems, when naming its nudie-scanner subsidiary, would have come up with a name less similar to RapeScan.

WASHINGTON ó Robert S. Mueller III, the director of the Federal Bureau of Investigation, traveled to Silicon Valley on Tuesday to meet with top executives of several technology firms about a proposal to make it easier to wiretap Internet users.

Mr. Mueller and the F.B.I.ís general counsel, Valerie Caproni, were scheduled to meet with senior managers of several major companies, including Google and Facebook, according to several people familiar with the discussions. How Mr. Muellerís proposal was received was not clear.

ďI can confirm that F.B.I. Director Robert Mueller is visiting Facebook during his trip to Silicon Valley,Ē said Andrew Noyes, Facebookís public policy manager. Michael Kortan, an F.B.I. spokesman, acknowledged the meetings but did not elaborate.

Mr. Mueller wants to expand a 1994 law, the Communications Assistance for Law Enforcement Act, to impose regulations on Internet companies.

The law requires phone and broadband network access providers like Verizon and Comcast to make sure they can immediately comply when presented with a court wiretapping order.

Law enforcement officials want the 1994 law to also cover Internet companies because people increasingly communicate online. An interagency task force of Obama administration officials is trying to develop legislation for the plan, and submit it to Congress early next year.

The Commerce Department and State Department have questioned whether it would inhibit innovation, as well as whether repressive regimes might harness the same capabilities to identify political dissidents, according to officials familiar with the discussions.

Under the proposal, firms would have to design systems to intercept and unscramble encrypted messages. Services based overseas would have to route communications through a server on United States soil where they could be wiretapped.

A Google official declined to comment. Mr. Noyes said it would be premature for Facebook to take a position.

Ah, the airport, where modern folk heroes are made. The airport, where that inspired flight attendant did what everyone who's ever been in the spam-in-a-can crush of a flying aluminum tube - where we collectively pretend that a clutch of peanuts is a meal and a seat cushion is a "flotation device" - has always dreamed of doing: pull the lever, blow the door, explode the chute, grab a beer, slide to the tarmac and walk through the gates to the sanity that lies beyond. Not since Rick and Louis disappeared into the Casablanca fog headed for the Free French garrison in Brazzaville has a stroll on the tarmac thrilled so many.

Who cares that the crazed steward got arrested, pleaded guilty to sundry charges, and probably was a rude, unpleasant SOB to begin with? Bonnie and Clyde were psychopaths, yet what child of the '60s did not fall in love with Faye Dunaway and Warren Beatty?

And now three months later, the newest airport hero arrives. His genius was not innovation in getting out, but deconstructing the entire process of getting in. John Tyner, cleverly armed with an iPhone to give YouTube immortality to the encounter, took exception to the TSA guard about to give him the benefit of Homeland Security's newest brainstorm - the upgraded, full-palm, up the groin, all-body pat-down. In a stroke, the young man ascended to myth, or at least the next edition of Bartlett's, warning the agent not to "touch my junk."

Not quite the 18th-century elegance of "Don't Tread on Me," but the age of Twitter has a different cadence from the age of the musket. What the modern battle cry lacks in archaic charm, it makes up for in full-body syllabic punch.

Don't touch my junk is the anthem of the modern man, the Tea Party patriot, the late-life libertarian, the midterm election voter. Don't touch my junk, Obamacare - get out of my doctor's examining room, I'm wearing a paper-thin gown slit down the back. Don't touch my junk, Google - Street View is cool, but get off my street. Don't touch my junk, you airport security goon - my package belongs to no one but me, and do you really think I'm a Nigerian nut job preparing for my 72-virgin orgy by blowing my johnson to kingdom come?

In "Up in the Air," that ironic take on the cramped freneticism of airport life, George Clooney explains why he always follows Asians in the security line:

That riff is a crowd-pleaser because everyone knows that the entire apparatus of the security line is a national homage to political correctness. Nowhere do more people meekly acquiesce to more useless inconvenience and needless indignity for less purpose. Wizened seniors strain to untie their shoes; beltless salesmen struggle comically to hold up their pants; 3-year-olds scream while being searched insanely for explosives - when everyone, everyone, knows that none of these people is a threat to anyone.

The ultimate idiocy is the full-body screening of the pilot. The pilot doesn't need a bomb or box cutter to bring down a plane. All he has to do is drive it into the water, like the EgyptAir pilot who crashed his plane off Nantucket while intoning "I rely on God," killing all on board.

But we must not bring that up. We pretend that we go through this nonsense as a small price paid to ensure the safety of air travel. Rubbish. This has nothing to do with safety - 95 percent of these inspections, searches, shoe removals and pat-downs are ridiculously unnecessary. The only reason we continue to do this is that people are too cowed to even question the absurd taboo against profiling - when the profile of the airline attacker is narrow, concrete, uniquely definable and universally known. So instead of seeking out terrorists, we seek out tubes of gel in stroller pouches.

The junk man's revolt marks the point at which a docile public declares that it will tolerate only so much idiocy. Metal detector? Back-of-the-hand pat? Okay. We will swallow hard and pretend airline attackers are randomly distributed in the population.

But now you insist on a full-body scan, a fairly accurate representation of my naked image to be viewed by a total stranger? Or alternatively, the full-body pat-down, which, as the junk man correctly noted, would be sexual assault if performed by anyone else?

Ok, so stop screening anyone that doesn't look "muslimy". Jihadists would never use children, or the disabled or the elderly in their plots, or jihadis that don't a middle eastern appearance. Perhaps the US could force every muslim to register their religious affiliation so as to facilitate the screening process?

Coulda swore I heard somewhere about some small country beset by rabid enemies on all sides that manages its airports in an efficient manner that doesn't require the "security theater" of which the TSA partakes. Dang, what was that country's name. . . .

Before Maj. Hasan went on his shooting spree, he was a US Army officer with a DOD ID and a secret level security clearance. Exactly what sort of security screening should he have gone through before flying?

"Before Maj. Hasan went on his shooting spree, he was a US Army officer with a DOD ID and a secret level security clearance. Exactly what sort of security screening should he have gone through before flying?"

A gun guy more than a chemist, I would run him through the metal detector. Who is next in this line - let's keep it moving folks.

Some profiling for flying might have brought his issues into view and saved lives. He was probably as likely to shoot up an airport as an airplane so that part of the Israeli system would have made sense.

I'm pointing out that there are people in the US with positions in society that seems to be model citizens that could potentially be recruited to do things that could cause a catastrophic attack. Israel has a large domestic intelligence agency that does things not done in the US, this and their ethnically based profiling system are not things that can be done here under our legal system.

A new government report released Thursday reveals that federal officers with the Transportation Security Administration (TSA) who are tasked with the job of spotting terrorists at airports have little training.

As CBS News Chief Investigative Correspondent Armen Keteyian first reported on Wednesday the TSA's behavior detection officers have never spotted a terrorist. Furthermore, the Government Accountability Office discovered that at least 16 known terrorists travelled through 8 different U.S. airports 23 times where the program had been implemented.

The GAO report says the TSA implemented its behavior detection program, which now costs taxpayers about $200 million annually, without first determining if there was any scientific valid basis for using it.

Read the GAO Report

As part of the program, specialized TSA officers watch passengers waiting in lines at select U.S. airport checkpoints and are supposed to be able to recognize anyone who is a security threat based on an analysis of facial expressions and body language.

According to the GAO, the TSA's behavior detection officers typically work in teams of two and "training includes 4 days of classroom courses, followed by 3 days of on-the-job training."